TaxTMI 
TaxTMI 
1973 (2) TMI 143
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....lso individual dealers in tyres having their business in Patna. In C.W.J.C. No. 46 of 1972 the three petitioners are the truck owners. The petitioners of C.W.J.C. No. 1722 of 1971 had initially challenged the validity of the orders of the District Magistrate, Patna, dated 20th of February, 1971 (Annexure 1); dated the 9th July, 1971 (Annexure 2) and dated the 13th of December, 1971 (Annexure 4). They had also challenged the validity of the order of the State Government dated the 6th of December, 1971 (Annexure 5). In C.W.J.C. No. 46 of 1972 the petitioners had only challenged the validity of the order of the State Government dated the 6th of December, 1971, a copy whereof has been made Annexure '1' to that writ application. It appears that the Government subsequently modified the order dated the 6th of December, 1971, by an order dated the 17th of March, 1972, a copy whereof has been made Annexure '17' to the reply filed by the petitioners to the counter-affidavit filed on behalf of the respondents in C.W.J.C. No. 1722 of 1971. At the time of the hearing of these two writ applications, only the validity of the order of the State Government dated the 17th of March, 1....
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....counter-affidavit filed on behalf of the respondents in CW.J.C. No. 1722 of 1971). By a notification dated the 18th of December, 1970, published in the Bihar Gazette Extraordinary, dated the 22nd of December, 1970, the State Government in exercise of the powers conferred by Section 3 of the Act added a number of items in Schedule II of the Control Order including ''tyres and tubes of cars, buses, jeeps, vans, trucks, automobiles of any category whatsoever, tractors and tractor-trollies". Clause 6 of Control Order, which is relevant for our purpose, reads as follows :-- "(1) The State Government may, by order, regulate the distribution of any scheduled commodity specified in Schedule II by any manufacturers, producer or distributor in such area or areas and in such manner as may be specified. (2) Every manufactures, producer or distributor shall comply with any direction issued by the State Government under Sub-clause (1). (3) Every distributor, dealer or agent shall, on receipt of a scheduled commodity specified in Schedule II supplied by any manufacturers, producer or distributor, as the case may be, whether in pursuance of an order made under Sub-clause (1....
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....e tyres in the open market and the remaining 50% of the same would be sold against permits issued by the Special Officer, Rationing, Patta, or the Deputy Rationing Officer, Patna. A copy of that order has been made Annexure '2' to the writ application. On the 13th of December, 1971, the District Magistrate issued another order under Sub-clause (3) of Clause 6 of the Control Order directing all the tyre distributors and dealers of Patna District to furnish in the Rationing Office, Patna, with immediate effect, daily returns showing particulars of (100%) tyres and tubes of trucks and buses in their stock in the proforma detailed in that order. They were directed to maintain daily stock register in the proforma separately for tyres and tubes. There was also a direction that all the tyres and tubes should be sold on permits issued by the Special Officer, Rationing, or the Deputy Rationing Officer, Patna. By that order the previous order dated the 9th of July, 1971 ( Annexure 2) was modified. A copy of that order has been made Annexure '4' to the writ application. 4. The State Government on the 6th December, 1971, issued a circular letter to all District Magistrates. A ....
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....y of the order of the Government as contained in Annexure 17 lead with the order as contained in Annexure 5 of C. W. J. C. No. 1722 of 1971 and Annexure 1 of C. W. J. C. No. 46 of 1972 has been challenged on behalf of the petitioners on the following three grounds : (1) That the impugned order is ultra vires Clause 6 of the Control Order. (2) That the order is discriminatory for the reason that it invests arbitrary discretion in the authority to issue permit on any other dealer within the period of 15 days resulting in adverse economic impact on different tyre dealers in different ways. (3) That impugned order (Annexure 5 of C. W. J. C. No. 1722 of 1971 and Annexure 1 of C. W. J. C. No. 46 of 1972) as modified by the order (Annexure 17 of C. W. J. C. No. 1722 of 1971) is ultra vires Section 3 of the Act. 6. Mr. Basudeva Prasad, who argued the case on behalf of the petitioners in C. W. J. C. No. 1722 of 1971, developed the first point in this way. Under Clause 6 of the Control Order the State Government has been authorised only to regulate the distribution of any Scheduled commodity and not to prohibit the distribution of such a commodity by a manufacturer or dealer. The orde....
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....ally to deprive the residents of what is admitted the most important part of the city of buying their goods of or of trading with the class of traders in question." In my opinion, that case is of no assistance to the petitioners as the facts were entirely different. In that case the hawkers etc., were prohibited from carrying on their trade in eight streets in the city of Toronto which streets comprised the busiest and most important thoroughfares of the city. In the instant case there is no such prohibition by the impugned orders. The dealers in tyres for buses and trucks are only required to sell the tyres of specified varieties to persons holding permits for such tyres and to no others. The underlying purpose of the impugned orders is to regulate the distribution of tyres of trucks and buses of specified varieties so that the genuine persons might not have the difficulty in obtaining the tyres. The object is not to prohibit the dealers in tyres from carrying on their trade or business in tyres even for a single day. The view which I have taken gets full support from the observation made by a Bench of the Allahabad High Court in the case of (2) the State of Uttar Pradesh an....
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....nd will favour some dealers. It is difficult to accept this contention. Merely because some discretion has been given to the Committee to issue permit it cannot be held that the power is discriminatory and abuse of such power cannot be assumed. As already stated, the Committee consists of not only the officials but also representatives of the District Truck Owners' Association, District Bus Owners' Association and Tyre and Tube Dealers' Association. Thus in the Committee there are representatives of the Bus Owners, the Truck Owners and Dealers in tyre and tube to lock after their interest. It is not expected that such a committee will not discharge its functions properly. It may be stated here that the Committee has been functioning since the month of December 1971 but no concrete instances have been given to show that the committee favoured some dealers during the period of last one year or be. The reply to the counter-affidavit of the respondents was filed by the petitioners on the 22nd of January, 1973, when the hearing of the two cases bad commenced. Copies of the representations made on behalf of "Standard Tyres" of which petitioner No. 2 of C.W.J.C. No. ....
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....of Clause 4(3) of the Uttar Pradesh Coal Control Order 1953 which gave the licensing authority absolute power to grant or refuse to grant any licence (Sic) were struck down on the ground that a law which confers arbitrary and uncontrolled power upon the executive in the matter of regulating trade or business in normally available commodities must be held to be unreasonable. There the power could be exercised by any person to whom the State Coal Controller might choose to delegate the same. The matter which has been stressed before us relates generally to the absence of any provision relating to appeal or revision in the Control Orders if the District Collector or the Deputy Commissioner of Civil Supplies refuses to grant a permit under Clause 3 of the Order. In Dwarka Prasad's case 1954 S. C. R. 803 = A.I.R. 1954 S. C. 224) the delegation could be made to any one which was certainly a relevant factor in judging the reasonableness of the impugned provision. But in the cases before us the permit is to be granted either by the State Government or by responsible officers of the rank of the District Collector or the Deputy Commissioner of Civil Supplies. Indeed, Mrs. Papu quite prop....
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....the power to issue such an order. It must be made clear that Mr. Basudeva Prasad has not raised the contention that the condition prescribed by the first part of Section 3(1) of the Act was not fulfilled and the State Government did not form the opinion about the necessity or expediency for issuing a regulatory order before the Control Order, namely, the Bihar Essential Commodities--other than foodgrains-- Prices and Stocks (Display and Control) Order, 1967, was made by the State Government. Therefore, it is not necessary to go into that question. According to Learned Counsel, there is nothing to show that the impugned order (Annexure 5), as modified by Annexure 17, was issued by the State Government after forming an opinion that it was necessary or expedient to issue the order and as such the two orders are void. In support of his contention Learned Counsel relied on two decisions of the Supreme Court in the case of (4) Barium Chemicals Ltd., and another V. Company Law Board and others A.I.R. 1967 SC 295) and (5) Rohtas Industries Ltd. V. S. D. Agrawal and another A.I.R. 1969 SC 707). This point which has been canvassed on behalf of the petitioners has not been specifically raised....
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....e Transport, Supply and representatives of Tyre Dealers' Association, Tyre Manufacturing Companies and Truck operating Association of Patna and Patna City and others, and it was decided that-- "In view of the small supply of and large demand for nylon tyres and 5% extra rubber tyres, only trucks registered in Patna will be eligible for such supply. Truck with 14500 K.G.R.L.W. and above will be eligible for two nylon tyres maximum at one time. Truck with 10699 K.G.R.L.W. and above but below 14500 K.G.R.L.W. will be eligible for two 5% extra rubber tyres maximum at a time. The truck of other categories will get supply of ordinary tyres available in the market.-- Thus it is clear from Annexure 20 that it was an admitted position that there was small supply of and large demand for Nylon tyres and 5% extra rubber tyres. The Government, therefore, was fully justified in passing the impugned order (Annexure 17) in C.W.J.C. No. 1722 of 1971, to lift the control in respect of all tyres except Nylon tyres and 5 extra% rubber tyres. The petitioners are, therefore, not justified in making the grievance regarding the control over the distribution of Nylon tyres and 5% extra rubber t....